TABLE OF CONTENTSmedia.aclj.org/pdf/MD-CTA-Doc-54-ACLJ-Amicus-Brief--3-31...2017/03/31 · brief to support Defendants-Appellants’ position on appeal and to urge this Court to vacate

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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i TABLE OF AUTHORITIES ................................................................................... iii CERTIFICATION PURSUANT TO FED. R. APP. P. 29(A)(4)(E) ........................ 1 STATEMENT OF INTEREST OF AMICUS CURIAE............................................. 1 ARGUMENT ............................................................................................................. 2 I. Supreme Court precedent dictates that the challenged Executive Order be reviewed under the deferential standards applicable to the immigration policymaking and enforcement decisions of the political branches, which the Executive Order satisfies. .......................................................................................... 2

A. Judicial review of the immigration-related actions of the political branches is deferential. ........................................................................................................ 3 B. The Executive Order is constitutional under the Supreme Court’s deferential standards applicable to constitutional challenges to the political branches’ immigration-related actions. ............................................................... 4

II. The Executive Order is constitutional even under a traditional Establishment Clause analysis. ........................................................................................................ 10 CONCLUSION ........................................................................................................17 CERTIFICATION PURSUANT TO FED. R. APP. P. 29 AND 32 .......................18 CERTIFICATE OF SERVICE ................................................................................19

Appeal: 17-1351 Doc: 54 Filed: 03/31/2017 Pg: 3 of 26

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TABLE OF AUTHORITIES CASES ACLU of Ky. v. Rowan Cnty., 513 F. Supp. 2d 889 (E.D. Ky. 2007) .......................................................... 11, 15 ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999) .................................................................................12 Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889 (E.D. Va. 2017) .................................................11 Bd. of Educ. v. Mergens, 496 U.S. 226 (1990) ............................................................................................14 Bowen v. Kendrick, 487 U.S. 589 (1988) ............................................................................................16 Brown v. Gilmore, 258 F.3d 265, 276 (4th Cir. 2001) ............................................................... 10, 14 Cardenas v. United States, 826 F.3d 1164 (9th Cir. 2016) .............................................................................. 3 Ehlers-Renzi v. Connelly Sch. of the Holy Child, Inc. 224 F.3d 283 (4th Cir. 2000) ..............................................................................14 FEC v. Wisc. Right to Life, Inc., 551 U.S. 449 (2007) .............................................................................................. 1 Felix v. City of Bloomfield, 841 F.3d 848 (10th Cir. 2016) ............................................................................11 Fiallo v. Bell, 430 U.S. 787 (1977) ...................................................................................... 3, 5-6 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .............................................................................................. 3


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Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) .............................................................................................. 3 Kerry v. Din, 135 S. Ct. 2128 (2015) .......................................................................................... 5 Kleindienst v. Mandel, 408 U.S. 753 (1972) ..........................................................................................4, 6 Lambeth v. Bd. of Comm'rs, 407 F.3d 266 (4th Cir. 2005) ..............................................................................16 Landon v. Plasencia, 459 U.S. 21 (1982) ................................................................................................ 3 Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................................................................10 Louhghalam v. Trump, 2017 U.S. Dist. LEXIS 15531 (D. Mass. 2017) .................................................11 Lynch v. Donnelly, 465 U.S. 668 (1984) ............................................................................................16 McConnell v. FEC, 540 U.S. 93 (2003) ................................................................................................ 1 McCreary Cnty. v. ACLU, 545 U.S. 844 (2005) ...................................................................................... 11-14 Moss v. Spartanburg Cnty. Sch. Dist., 683 F.3d 599, 608 (4th Cir. 2012) ...........................................................................10 Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) ................................................................................. 8 Republican Party of Minn. v. White, 536 U.S. 765 (2002) ............................................................................................13


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Roark v. S. Iron R-1 Sch. Dist., 573 F.3d 556 (8th Cir. 2009) ..............................................................................12 Sarsour v. Trump, 2017 U.S. Dist. LEXIS 43596 (E.D. Va. 2017) .................................... 11, 12, 16 United States v. Texas, 136 S. Ct. 2271 (2016) .......................................................................................... 1 Van Orden v. Perry, 545 U.S. 677 (2005) ............................................................................................10 Wallace v. Jaffree, 472 U.S. 38 (1985) ..............................................................................................14 Washington v. Trump, 2017 U.S. App. LEXIS 2369 (9th Cir. 2017) ...................................................1, 6 Washington v. Trump, 2017 U.S. App. LEXIS 4572 (9th Cir. 2017) ...................................................2, 6 Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015) .......................................................................................... 4 STATUTES AND RULES 8 U.S.C. § 1182(f) ...................................................................................................... 4 Circuit Rule 26.1 ........................................................................................................ i Fed. R. App. P. 29 ............................................................................................ i, 1, 18 Fed. R. App. P. 32 ....................................................................................................18


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OTHER AUTHORITIES Dep’t of Homeland Security, Press Release, United States Begins Implementation

of Changes to the Visa Waiver Program (Jan. 21, 2016), available at https://preview.dhs.gov/news/2016/01/21/united- states-begins-implementation-changes-visa-waiver-program .............................. 8 DHS Announces Further Travel Restrictions for the Visa Waiver Program, Press Release, (Feb. 18, 2016), available at https://preview.dhs.gov/news/2016/02/18/ dhs-announces-further-travel-restrictions-visa-waiver-program .......................... 8 U.S. Dep’t of State, Country Reports on Terrorism 2015, (June 2, 2016), available at https://www.state.gov/documents/organization/258249.pdf ................................ 8


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CERTIFICATION PURSUANT TO FED. R. APP. P. 29(A)(4)(E)

Pursuant to Fed. R. App. P. 29(a)(4)(E), the American Center for Law and

Justice affirms that no counsel for a party authored this brief in whole or in part

and that no person other than the amicus, its members, or its counsel made any

monetary contributions intended to fund the preparation or submission of this brief.

STATEMENT OF INTEREST OF AMICUS CURIAE

The American Center for Law and Justice (“ACLJ”) is an organization

dedicated to the defense of constitutional liberties secured by law. Counsel for the

ACLJ have presented oral argument, represented parties, and submitted amicus

briefs before the Supreme Court of the United States, this Court, and other courts

around the country in cases concerning the First Amendment and immigration law.

See, e.g., FEC v. Wisc. Right to Life, 551 U.S. 449 (2007); McConnell v. FEC, 540

U.S. 93 (2003); United States v. Texas, 136 S. Ct. 2271 (2016); and Washington v.

Trump, 2017 U.S. App. LEXIS 2369 (9th Cir. 2017). The ACLJ has actively

defended, through advocacy and litigation, immigration policies that protect

American citizens. This brief is supported by members of the ACLJ’s Committee

to Defend Our National Security from Terror, which represents more than 205,000

Americans who have stood in support of the President's Executive Order Protecting

the Nation from Foreign Terrorist Entry into the United States.


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The ACLJ submits this amicus curiae brief to support Defendants-

Appellants’ position on appeal and to urge this Court to vacate the preliminary

injunction. Jt. App. at 770, 813. The parties consented to the filing of this amicus

curiae brief.

ARGUMENT

I. Supreme Court precedent dictates that the challenged Executive Order be reviewed under the deferential standards applicable to the immigration policymaking and enforcement decisions of the political branches, which the Executive Order satisfies.

The district court accepted Plaintiffs’ invitation to treat this case as if it were

a run-of-the-mill Establishment Clause case. It is not. The cases that the court

primarily relied upon, which green-lighted a detailed inquiry into the primary

purpose of the government’s actions, involved factual contexts such as the public

display of the Ten Commandments. Jt. App. at 798-802. In stark contrast, this case

involves the special context of an executive order (“EO”) concerning the entry into

the United States of refugees and nationals of six countries of particular concern,

enacted pursuant to the President’s constitutional and statutory authority. As

discussed herein, when the Supreme Court has considered constitutional challenges

to immigration-related actions of this sort, it has declined to subject those actions

to the same level of scrutiny applied to non-immigration-related actions, choosing

instead to take a considerably more deferential approach. See also Washington v.

Trump, 2017 U.S. App. LEXIS 4572, at *14 n.6 (9th Cir. 2017) (Bybee, J.,


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dissenting from the denial of reconsideration en banc) (the panel’s “unreasoned

assumption that courts should simply plop Establishment Clause cases from the

domestic context over to the foreign affairs context ignores the realities of our

world”). The EO is valid under this standard.

A. Judicial review of the immigration-related actions of the political branches is deferential.

“The Supreme Court has ‘long recognized the power to expel or exclude

aliens as a fundamental sovereign attribute exercised by the Government’s political

departments largely immune from judicial control.’” Cardenas v. United States,

826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792

(1977)). Indeed, “an alien seeking initial admission to the United States requests a

privilege and has no constitutional rights regarding his application, for the power to

admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S.

21, 32 (1982). Moreover, the Constitution “is not a suicide pact,” Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 160 (1963), and protecting national security is

the government’s first responsibility. The President has broad national security

powers, which may be exercised through immigration restrictions. Harisiades v.

Shaughnessy, 342 U.S. 580, 588-89 (1952).

The district court’s decision also undercuts the considered judgment of

Congress that


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[w]henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

8 U.S.C. § 1182(f). Where, as here, a President’s action is authorized by Congress,

“his authority is at its maximum, for it includes all that he possesses in his own

right plus all that Congress can delegate.” Zivotofsky ex rel. Zivotofsky v. Kerry,

135 S. Ct. 2076, 2084 (2015) (citation omitted). The EO falls squarely within the

President’s constitutional and statutory authority.

B. The Executive Order is constitutional under the Supreme Court’s deferential standards applicable to constitutional challenges to the political branches’ immigration-related actions.

In Kleindienst v. Mandel, 408 U.S. 753, 770 (1972), the Court rejected a

First Amendment challenge to the Attorney General’s decision to decline to grant a

waiver that would have allowed a Belgian scholar to enter the country on a visa in

order to speak to American professors and students. The plaintiffs (American

professors) contended that the denial deprived them of their First Amendment right

to receive information from him. The Court noted that, although it had previously

“referred to a First Amendment right to ‘receive information and ideas,’” the

[r]ecognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. In accord with ancient principles of the international law of nation-states . . . the power to exclude aliens is “inherent in sovereignty, necessary for maintaining normal international relations and


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defending the country against foreign encroachments and dangers--a power to be exercised exclusively by the political branches of government.”

Id. at 765 (citations omitted). The Court concluded by stating that

plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 212 (a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 769-70; see also Kerry v. Din, 135 S. Ct. 2128, 2139-41 (2015) (Kennedy, J.,

concurring) (the government’s statement that a visa application was denied due to

suspected involvement with terrorist activities “satisf[ied] Mandel’s ‘facially

legitimate and bona fide’ standard.”).

Similarly, in Fiallo, the Court rejected a challenge to statutory provisions

that granted preferred immigration status to most aliens who are the children or

parents of United States citizens or lawful permanent residents, except for

illegitimate children seeking that status by virtue of their biological fathers, and the

fathers themselves. 430 U.S. at 788-90. The Court stated:

At the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that “over no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens. . . . [W]e observed recently that in the exercise of its broad power over immigration and naturalization, “Congress regularly makes rules that would be unacceptable if applied to citizens.”

Id. at 792 (citations omitted).


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The Court noted that it had previously “resolved similar challenges to

immigration legislation based on other constitutional rights of citizens, and has

rejected the suggestion that more searching judicial scrutiny is required.” Id. at

794. The Court stated, “[w]e can see no reason to review the broad congressional

policy choice at issue here under a more exacting standard than was applied in

Kleindienst v. Mandel, a First Amendment case.” Id. at 795. 1 The Court

emphasized that “it is not the judicial role in cases of this sort to probe and test the

justifications for the legislative decision.” Id. at 799. The Court concluded that the

plaintiffs raised “policy questions entrusted exclusively to the political branches of

our Government . . . .” Id. at 798; see also Washington, 2017 U.S. App. LEXIS

2369, at *15-16 (courts “owe substantial deference to the immigration and national

security policy determinations of the political branches” when deciding whether

such policies are constitutional).

1 Although a panel of the Ninth Circuit recently concluded that the Mandel

standard does not apply to “exercises of policymaking authority at the highest levels of the political branches,” Washington, 2017 U.S. App. LEXIS 2369, at *17-18, this conclusion is undercut by Fiallo’s reliance upon Mandel in the context of a Congressional statute which, like the EO, is an “exercise[] of policymaking authority at the highest levels of the political branches.” See Washington, 2017 U.S. App. LEXIS 4572, at *17 (Bybee, J.) (“The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972).”).


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In sum, the legality of executive orders related to immigration does not turn

on a judicial guessing game of what the President’s subjective motives were at the

time; rather, Mandel, Fiallo, and other cases dictate that courts should rarely look

past the face of such orders. The EO is valid under this standard. It is closely

tethered to well-established discretionary powers vested in the Executive Branch

by the Constitution and statute. The EO temporarily pauses entry into the United

States of refugees under the United States Refugee Admissions Program

(“USRAP”) as well as nationals of six unstable and/or terrorism-infested countries

of particular concern, which were designated as such by the prior administration,

for the legitimate secular purpose of allowing time for needed improvements to the

immigration and refugee screening processes.

The EO does not single out Muslims for disfavored treatment, as the district

court correctly noted. Jt. App. at 775. The countless millions of non-American

Muslims who live outside of the six countries of particular concern are not

restricted by the EO. Neither does it limit its application to Muslims in the six

designated countries; instead, it applies to all citizens of the six enumerated

countries irrespective of their faith.

Although it is well-established that litigants and courts should not second-

guess the wisdom of, or evidentiary support for, the political branches’ decision-

making concerning immigration, the district court cited with approval Plaintiffs’


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assertion that the EO’s stated national security reasons are pretextual. Jt. App. at

803-806. There is, however, ample justification for the determination of multiple

administrations that the six designated countries pose a particular risk to American

national security.2 Plaintiffs’ objection to the EO is a policy dispute that should be

resolved by the political branches.

The EO is similar in principle to the National Security Entry Exit

Registration System (“NSEERS”) implemented after the terrorist attacks of

September 11, 2001, which was upheld by numerous federal courts. Rajah v.

Mukasey, 544 F.3d 427, 438-39 (2d Cir. 2008) (citing cases). Under this system,

the Attorney General imposed special requirements upon foreign nationals present

in the United States who were from specified countries. The first group of

countries designated by the Attorney General included Iran, Libya, Sudan and

2 See, e.g., U.S. Dep’t of State, Country Reports on Terrorism 2015, June

2016, https://www.state.gov/documents/organization/258249.pdf, at pp. 11-12 (discussing terrorism in Somalia), pp. 165-66 (describing Syria, Libya, and Yemen as primary theaters of terrorist activities), pp. 299-302 (designating Iran, Sudan, and Syria as state sponsors of terrorism); Dep’t of Homeland Security, United States Begins Implementation of Changes to the Visa Waiver Program (Jan. 21, 2016), https://preview.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program & DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://preview.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiver-program (explaining that most nationals of Visa Waiver Program countries who are also nationals of Iran, Sudan, or Syria, or who visited those countries or Libya, Somalia, or Yemen on or after March 1, 2011, are ineligible to be admitted to the U.S. under the Program).


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Syria, and a total of twenty-four Muslim majority countries and North Korea were

eventually designated. Id. at 433 n.3. In one illustrative case, the Second Circuit

rejected arguments that are strikingly similar to the arguments accepted by the

district court here:

There was a rational national security basis for the Program. The terrorist attacks on September 11, 2001 were facilitated by the lax enforcement of immigration laws. . . . The Program was [rationally] designed to monitor more closely aliens from certain countries selected on the basis of national security criteria. . . . To be sure, the Program did select countries that were, with the exception of North Korea, predominantly Muslim. . . . However, one major threat of terrorist attacks comes from radical Islamic groups. The September 11 attacks were facilitated by violations of immigration laws by aliens from predominantly Muslim nations. The Program was clearly tailored to those facts. . . . Muslims from non-specified countries were not subject to registration. Aliens from the designated countries who were qualified to be permanent residents in the United States were exempted whether or not they were Muslims. The program did not target only Muslims: non-Muslims from the designated countries were subject to registration. There is therefore no basis for petitioners’ claim.

Id. at 438-49 (emphasis added). Similarly, the EO at issue here is constitutional.3

3 The mere fact that the six countries of particular concern designated by the

EO happen to have Muslim majority populations is not evidence of religious animus. Under this reasoning, the benefits that the government provides to military veterans would be rendered constitutionally suspect by the mere fact that approximately 85% of them happen to be male, even though there are many legitimate reasons for providing such benefits unrelated to any gender-based bias.


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II. The Executive Order is constitutional even under a traditional Establishment Clause analysis.

Justice Breyer’s controlling opinion in Van Orden v. Perry, 545 U.S. 677

(2005), observed that, “[w]here the Establishment Clause is at issue, tests designed

to measure ‘neutrality’ alone are insufficient.” Id. at 699 (Breyer, J., concurring).

Justice Breyer stated that, in “difficult borderline cases . . . I see no test-related

substitute for the exercise of legal judgment . . . [which] must reflect and remain

faithful to the underlying purposes of the [Religion] Clauses . . . .” Van Orden, 545

U.S. at 700. In this case, “the exercise of legal judgment” must take into account

the deferential nature of judicial review of immigration-related actions such as the

EO. Nevertheless, the EO is constitutional even under non-immigration-related

Establishment Clause jurisprudence.

The EO satisfies the “purpose prong” of Lemon v. Kurtzman, 403 U.S. 602,

612-13 (1971), which asks whether the challenged government action is “driven in

part by a secular purpose.” Moss v. Spartanburg Cnty. Sch. Dist., 683 F.3d 599,

608 (4th Cir. 2012) (emphasis in original). As discussed previously, the EO’s

predominant purpose is protecting national security. See Brown v. Gilmore, 258

F.3d 265, 276 (4th Cir. 2001) (explaining that “the first prong of Lemon is a fairly

low hurdle so that a statute fails on this account when there is no evidence of a

legitimate, secular purpose”) (citations and internal quotation marks omitted)

(emphasis in original).


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Similarly, the fact that enforcement of the now-repealed order—which was

substantively different from the present EO in numerous ways—was preliminarily

enjoined on an expedited basis does not support the district court’s decision here.4

Under the analysis of the district court’s decision, any hypothetical future

immigration-related orders issued by the current President will be irredeemably

tainted by the alleged subjective, predominantly anti-Muslim intent of the

President and his surrogates, which runs contrary to Supreme Court’s admonition

in McCreary County that the government’s “past actions” do not “forever taint any

effort . . . to deal with the subject matter.” McCreary Cnty. v. ACLU, 545 U.S. 844,

874 (2005); see also Felix v. City of Bloomfield, 841 F.3d 848, 863 (10th Cir.

2016); ACLU of Ky. v. Rowan Cnty., 513 F. Supp. 2d 889, 897 (E.D. Ky. 2007)

(holding that, under McCreary County, a government actor that purportedly had

“an overtly religious purpose in the past, may ‘get it right’ at some point in the

future, based on genuine changes in constitutionally significant conditions”);

4 Although a Virginia district court issued a preliminary injunction against

the now-repealed order on Establishment Clause grounds, Aziz v. Trump, 2017 U.S. Dist. LEXIS 20889 (E.D. Va. 2017), a Massachusetts district court concluded that the same order did not discriminate against Muslims. Louhghalam v. Trump, 2017 U.S. Dist. LEXIS 15531, at *13-14 (D. Mass. 2017).

Moreover, in contrast to the district court here, a district court in the Eastern District of Virginia recently denied a motion for a preliminary injunction, which included an Establishment Clause claim, brought against the current executive order and rejected many of the same arguments brought by Plaintiffs in the instant action. Sarsour v. Trump, 2017 U.S. Dist. LEXIS 43596 (E.D. Va. 2017).


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ACLU v. Schundler, 168 F.3d 92, 105 (3d Cir. 1999) (Alito, J.) (“The mere fact

that Jersey City’s first display was held to violate the Establishment Clause is

plainly insufficient to show that the second display lacked ‘a secular legislative

purpose,’ or that it was ‘intended to convey a message of endorsement or

disapproval of religion.’”) (citations omitted); Roark v. S. Iron R-1 Sch. Dist., 573

F.3d 556 (8th Cir. 2009) (“Another reason we reject the district court’s Lemon

analysis is that its emphasis on past practice and the views of individual Board

members would preclude the District from ever creating a limited public forum in

which religious materials may be distributed in a constitutionally neutral

manner. . . . [S]chool officials must remain free to experiment in good faith with

new policies . . . .”).

Here, the many substantive differences between the prior order and the

existing EO constitute “genuine changes in constitutionally significant conditions”

that cured any actual or perceived Establishment Clause deficiencies. See

McCreary Cnty., 545 U.S. at 874; Sarsour, 2017 U.S. Dist. LEXIS 43596, at *33

(“[T]he substantive revisions reflected in EO-2 [the executive order at issue in the

instant appeal] have reduced the probative value of the President’s statements to

the point that it is no longer likely that Plaintiffs can succeed on their claim that the

predominant purpose of EO-2 is to discriminate against Muslims based on their

religion and that EO-2 is a pretext or a sham for that purpose.”)


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Moreover, the district court’s decision to sidestep the EO’s obvious secular

purposes by focusing on miscellaneous comments made by then-candidate Trump,

or one of his advisors, is flawed for at least three reasons.

First, the Supreme Court has stated that the primary purpose inquiry

concerning statutes may include consideration of the “plain meaning of the

statute’s words, enlightened by their context and the contemporaneous legislative

history [and] the historical context of the statute . . . and the specific sequence of

events leading to [its] passage.” McCreary Cnty., 545 U.S. at 862; see also id.

(noting that the primary purpose inquiry is limited to consideration of “the ‘text,

legislative history, and implementation of the statute,’ or comparable official act”)

(citation omitted). The district court relied upon several quotes, made as long ago

as 2015, by then-candidate Trump and/or individuals holding some non-

governmental position within his political campaign. Jt. App. at 795-798. No

doubt, comments made, or actions taken, by a private citizen while a candidate for

public office (or his or her advisors) while on the campaign trail are not “official”

government acts, and do not constitute “contemporaneous legislative history.” See

McCreary Cnty., 545 U.S. at 862. Indeed, “one would be naive not to recognize

that campaign promises are—by long democratic tradition—the least binding form

of human commitment.” Republican Party of Minn. v. White, 536 U.S. 765, 780

(2002).


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Second, the district court’s extensive reliance upon purported evidence of a

subjective, personal anti-Muslim bias of the President and some of his advisors is

improper because “what is relevant is the legislative purpose of the statute, not the

possibly religious motives of the legislators who enacted the law.” Bd. of Educ. v.

Mergens, 496 U.S. 226, 249 (1990) (plurality op.) (emphasis added). Clearly, the

district court engaged in the kind of “judicial psychoanalysis of a drafter’s heart of

hearts” that is foreclosed by Supreme Court precedent. McCreary Cnty., 545 U.S.

at 862.

The EO, on its face, serves secular purposes, and no amount of rehashing of

miscellaneous campaign trail commentary can change that. A foray into the

malleable arena of legislative history is not a requirement in all Establishment

Clause cases; to the contrary, courts “must defer to [the government’s] stated

reasons if a ‘plausible secular purpose . . . may be discerned from the face of the

statute,’” which is the case here. See Ehlers-Renzi v. Connelly Sch. of the Holy

Child, Inc., 224 F.3d 283, 288 (4th Cir. 2000) (noting that the secular purpose

hurdle can be “cleared by finding a plausible secular purpose on the face of the

regulation”) (citations and internal quotation marks omitted); see also Wallace v.

Jaffree, 472 U.S. 38, 74 (1985) (O’Connor, J., concurring) (inquiry into the

government’s purpose should be “deferential and limited”); accord Brown, 258

F.3d at 276.


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One illustration of the problematic nature of attempting to utilize legislative

history to override a policy’s facial neutrality is Plaintiffs’ suggestion, cited with

approval by the district court, that a presidential policy advisor’s statement that the

EO is designed to accomplish the same basic policy outcome as the now-repealed

order, while merely correcting technical issues, constitutes evidence that the

existing EO is really a wolf in sheep’s clothing. Jt. App. at 799-801. Rather than

being some sort of smoking gun, however, this comment merely suggests that the

existing EO was narrowly crafted to address concerns raised during litigation over

the prior order, with the secular goal of protecting national security in mind.

Addressing actual or perceived flaws in previous iterations of a law or policy, in

order to bolster the likelihood that it will be upheld in litigation, is itself a valid

secular purpose. See, e.g., Rowan Cnty., 513 F. Supp. 2d at 904 (in Establishment

Clause cases, changing a policy in “an attempt to avoid litigation . . . is an

acceptable purpose”).

Finally, the mere suggestion of a possible religious or anti-religious motive,

mined from past comments of a political candidate or his supporters, and

intermixed with various secular purposes, is not enough to doom government

action (along with all subsequent attempts to address the same subject matter).

“[A]ll that Lemon requires” is that government action have “a secular purpose,”

not that its purpose be “exclusively secular,” and a policy is invalid under this test


16

only if it “was motivated wholly by religious considerations.” Lynch v. Donnelly,

465 U.S. 668, 680-81 & n.6 (1984) (emphasis added); see also Bowen v. Kendrick,

487 U.S. 589, 602 (1988) (“[A] court may invalidate a statute only if it is

motivated wholly by an impermissible purpose . . . .”); Lambeth v. Bd. of Comm’rs,

407 F.3d 266, 270 (4th Cir. 2005) (“[W]e will deem the first prong of the Lemon

test to be contravened only if [the action] is entirely motivated by a purpose to

advance religion.”) (citations and internal quotation marks omitted). The EO

clearly serves secular purposes and, therefore, it satisfies Lemon’s purpose test. See

Sarsour, 2017 U.S. Dist. LEXIS 43596, at *24-34 (rejecting claim that the current

executive order violates the purpose prong of Lemon and noting that the executive

order is a facially lawful exercise of the president’s authority and that the stated

national security purpose of the executive order is not a pretext for discrimination

against Muslims).


Documents

TABLE OF CONTENTSmedia.aclj.org/pdf/MD-CTA-Doc-54-ACLJ-Amicus-Brief--3-31...2017/03/31 · brief to support Defendants-Appellants’ position on appeal and to urge this Court to vacate